Federal Trade Commission

With a new administration and a new Congress come key leadership changes and new priorities at the Federal Trade Commission (FTC).  The change in administration paves the way for a Democratic-led Commission, though a permanent FTC Chairman and a successor to Commissioner Chopra (who has been nominated to head the Consumer Financial Protection Bureau) might not be confirmed for several months.  In the meantime, President Biden has appointed sitting Commissioner Slaughter to serve as Acting Chair.
Continue Reading What A New Administration Means for the FTC’s Data Privacy & Security Enforcement Agenda

On January 7, the Federal Trade Commission (“FTC”) reached a proposed settlement with Tapjoy, a California-based company that operates an advertising platform within mobile gaming applications.  According to its complaint, the FTC alleges that Tapjoy deceived consumers by failing to provide in-game rewards it promised for completing actions associated with third-party advertisements.
Continue Reading FTC Reaches Settlement with Tapjoy for Allegedly Deceiving Consumers About In-Game Rewards

On Wednesday, January 13, the Supreme Court heard arguments in AMG Capital Management LLC v. Federal Trade Commission.  This case raises the question whether the Federal Trade Commission (FTC) has been properly using Section 13(b) of the FTC Act, the provision authorizing requests for preliminary and permanent injunctions where the FTC believes the defendant

The FTC recently updated Complying with COPPA: Frequently Asked Questions, the set of FAQs meant to provide informal guidance for complying with the Children’s Online Privacy Protection Act and the Commission-issued COPPA Rule.  In an accompanying blog post, the FTC staff emphasized that the revisions to the FAQs “don’t raise new policy issues” and that they were implemented primarily to streamline and reorganize the content “to make the document easier to use.”  While the new FAQs generally only reinforce concepts from recent key settlements, enforcement policy positions, and separately-issued regulatory guidance, some of the updates also provide helpful additional context around specific issues such as mixed audience sites and services, age gates, and common consent mechanisms.
Continue Reading Federal Trade Commission Updates, Streamlines COPPA FAQs

As consumers rely more and more on the “independent” reviews of their peers in choosing products and services, advertisers need to remain vigilant that their role (if any) in disseminating such reviews is fairly disclosed, accurate and not misleading.  The pitfalls in this area were recently illustrated by a pair of enforcement actions brought by the Federal Trade Commission and the National Advertising Division of the Better Business Bureau.  These actions, the latest in a series of similar enforcement efforts, confirm that review sites remain a hotbed of enforcement activity, and both actions serve as good reminders of the standards that review sites must observe to avoid similar actions.

The first of these actions is an FTC enforcement against LendEDU, which centered around the “objective,” “honest,” “accurate,” and “unbiased” rankings of financial products that LendEDU posted to its review site.  The FTC alleged that, far from being objective and honest, these rankings were in fact determined based on compensation from the companies being ranked.  In addition, the FTC alleged that over ninety percent of LendEDU’s “unbiased” positive reviews were in fact written by LendEDU employees and their friends and families.
Continue Reading FTC and NAD Actions Highlight Continued Scrutiny of Online Reviews

In response to the COVID-19 outbreak, several U.S. government entities have released warnings about a rise in scams and fraudulent activity connected to the outbreak.  In a recent bulletin, the FBI warned of a rise in phishing emails, counterfeit treatments or equipment for COVID-19 preparedness, and fake emails from the Centers for Disease Control and Prevention (CDC) purporting to provide information about the outbreak.  The FTC, meanwhile, has released not only a general overview of the steps that it is taking to combat scams related to COVID-19, but has also provided a specific list of seven types of COVID-19 scams that it has observed targeting businesses.  More information about these scams, and guidance from the FBI and FTC on how to protect against and respond to some of the most common risks, is below.
Continue Reading COVID-19 Cybersecurity Advice: FTC and FBI Provide Guidance on Cybersecurity Scam Trends and Preventive Measures

In response to the drastic increase of U.S. employees working remotely, the U.S. Federal Trade Commission (“FTC”) and the U.S. National Institute of Standards and Technology (“NIST”) have both issued guidance for employers and employees on best practices for teleworking securely.  In addition, the Cybersecurity and Infrastructure Security Agency (“CISA”) has provided advice on identifying essential workers, including IT and cybersecurity personnel, in critical infrastructure sectors that should maintain normal work schedules if possible.  Each set of guidance is discussed in further detail below.
Continue Reading COVID-19 Cybersecurity Advice: FTC, NIST, and CISA Release Guidance on Secure Teleworking and Critical Infrastructure Jobs

Cardi B might like it, but the Federal Trade Commission (“FTC”) did not.  On March 5, 2020, the agency sent Cardi B and other high-profile influencers warning letters alleging that the influencers made inadequate disclosures in their endorsements of Teami tea.  The letters followed on the heels of the FTC’s proposed order against Teami, LLC for allegedly making deceptive claims about weight loss and other health benefits in their advertisements and failing to adequately instruct influencers about how to comply with the law when endorsing Teami products.
Continue Reading FTC Sends Warning Letters to Teami Tea Influencers

On March 5, Senators Ed Markey (D-MA) and Richard Blumenthal (D-CT) introduced the Kids Internet Design and Safety (KIDS) Act.  The bill, which covers online platforms directed to children and teenagers under 16 years old, aims to curb the time spent by these minors on such platforms and could dramatically affect advertising and influencer content on kids’ channels.

The bill would prohibit platforms directed to minors from implementing features that encourage users to spend more time online, such as “auto-play” settings that automatically load a new video once the selected one finishes playing, push alerts that encourage users to engage with the platform, and the display of positive feedback received from other users.  It would also ban badges or other visual incentives and rewards based on engagement with the platform.

Additionally, the KIDS Act would prohibit platforms from recommending or amplifying certain content involving sexual, violent, or other adult material, including gambling or “other dangerous, abusive, exploitative, or wholly commercial content.”  The bill would require the implementation of a mechanism for users to report suspected violations of content requirements.
Continue Reading New Bill Seeks to Impose Design Restrictions on Kids’ Online Content and Marketing

On February 12, 2020, Senator Kirsten Gillibrand (D-NY) announced a plan to create a new Data Protection Agency through her proposed legislation, the Data Protection Act of 2020 (S.3300).

Under the proposal, the new agency would replace the Federal Trade Commission (FTC) as the “privacy cop on the beat.”  As such, the FTC’s current authority in the privacy space—including its ability to draft guidelines, conduct studies, and issue implementing regulations for certain federal privacy laws, would be transferred to the new agency.

As opposed to the Online Privacy Act, a bill introduced by Representatives Anna Eshoo (D-CA-18) and Zoe Lofgren (D-CA-19) that also would create a new privacy agency, Sen. Gillibrand’s bill would not create a new omnibus federal privacy law.  Instead, it is focused on the creation of the Data Protection Agency and its rulemaking authority.  However, various aspects of the new agency’s authority provide valuable insights into what privacy regulation at the federal level might look like under the bill.
Continue Reading Sen. Kirsten Gillibrand Proposes New Digital Privacy Agency